Before:

THE HON. MR JUSTICE EADY

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Between:

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Mr Desmond Browne QC and Jonathan Barnes (instructed by RadcliffesLeBrasseur) for the Claimant
Adrienne Page QC, Matthew Nicklin and Jacob Dean (instructed by Wiggin LLP) for the Defendants

Ms Horne-Roberts appeared as a McKenzie Friend for a Parent

Hearing date: 1st November 2006

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Approved Judgment

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THE HON. MR JUSTICE EADY

The Hon. Mr Justice Eady :

1. I must now give a short ruling in relation to the principal matter of dispute today. I do not propose to go into it at great length because the arguments have been very fully rehearsed, both in writing and orally. The issue which I am concerned with today is whether or not the defendants in this libel action should have the right to inspect documents which have been disclosed by the claimant, Dr. Wakefield, in the course of standard disclosure.

2. There is no doubt that the article 8 rights of the patients concerned, some of whom are still minors and some of whom are now adults but, as I understand it, in all cases are not necessarily in a position to give consent themselves, are engaged, as is obvious from the nature of the medical records and this is reflected in authorities, as one would expect it to be. On the other hand, the article 6 rights of the defendants are engaged because they wish to be able to have access to this material on a limited basis for the purpose of preparing their case, supporting their plea of justification and meeting the claim which Dr. Wakefield has brought against them.

3. The test which has to be applied in those circumstances, as one would expect, is that of necessity and proportionality. The court has to carry out a balancing exercise between those competing rights. The court should only make an order, as a public body encroaching upon the article 8 rights of the patients, if it is necessary and proportionate to do so in order to provide for and protect the article 6 rights of the defendants. The appropriate test - and this is in a sense reflected, as Ms. Page pointed out, in the provisions for third party disclosure in CPR Part 31.17 - is whether or not it is necessary for a fair disposal of the action.

4. Submissions have been made to me on the question of necessity very thoroughly and fully. It seems to me to be clear that these medical records are central to part of the defendants' plea. Insofar as it needs to be backed up with chapter and verse, it has been illustrated by reference to certain paragraphs in the reply, which are to be found at paras.2.18, 2.21, 2.22, 2.25, 2.28, 2.30 & 2.31. There are specific passages within those paragraphs to which my attention was particularly drawn.

5. The question is whether the defendants can deal fairly with that part of the pleading without having access to un-redacted copies of these medical records in the first instance. I do not think they can. It seems to me, as I say, that they are so central they are entitled to have access to the un-redacted records. However, having said that, it seems equally clear that the most stringent provisions must be put in place to ensure that contents of those records are not revealed more widely than is necessary for the purpose. Certainly, they should not be made public and I cannot foresee any circumstances in which they would be made public.

6. When the matter comes to trial, which is no doubt someway off, provision will have to be in place to ensure that these records are not available to the public or to journalists. Insofar as they are referred to, they will be referred to on an anonymised basis and, perhaps to some extent also, ultimately a redacted basis. But what I am going to propose is that the parties to this litigation should attempt to agree orders of the kind which have been proposed, not only by the parties but by Mr. Dutton QC, who has helpfully represented the interests of the GMC before me, both and writing and briefly today also orally.

7. Those proposals need to be put in place very carefully. The access to the documents, for the proper purpose of preparing the defence, should be on a restricted basis. The number of copies needs to be restricted and the number of people to see them needs to be restricted, and I will give the parties an opportunity of working out an agreed order in that respect. The draft order, when it is available, should also be submitted to Mr. Dutton for his comments and observations and also to any representative of the parents, including of course Miss Home-Roberts, who has been before me today and has helped as best she can, having been very recently instructed on behalf of the person who has been referred to as parent 3, so that the parents' interests and the children's interests can be properly represented in the formulation of that order. It can then be placed before me and, if and insofar as there is any continuing dispute as to its terms, I will attempt to resolve that dispute. But I envisage that it would not be necessary for the un-redacted copies to be seen, except on a very limited basis.

8. There is going to be a further hearing. I think it is going to commence on the 28^th, 29^th or 30^th November. By that time, I hope that the terms of an order can be agreed. What I am doing today is ruling on the principle that the defendants are entitled to see un-redacted copies on the basis that I described.

9. Miss Home-Roberts also asked me, reflecting a request which was made to me in writing by her client, parent 3, that Mr. Deer should be ordered or invited to remove material which is on his website relating to her son. It was not clear to me when I read the letter what jurisdiction I was being invited to exercise in this respect. Reference has been made to s.11 of the Contempt of Court Act but, as I observed briefly a moment ago, what that does is to reflect common law powers, which the court has long acknowledged, for restricting reports of proceedings to protect legitimate purposes. Sometimes the court does anonymise parties, or persons referred to in proceedings, for legitimate purposes which vary considerably from case to case.

10. It does not seem to me that that is relevant here, because what Mr. Deer has on his website is not concerned with reporting these proceedings. The information on his website derives from other sources. If there is some other basis for asking him to remove it, no doubt that will be considered in due course. At the moment, I do not understand what the basis is, and I do not think it would be sensible for me to make a request to him because the court is not in the business of requesting, but only exercising a jurisdiction which can be backed up by an order where necessary. If he wishes to publish that material on his website, that is his privilege in accordance with the right of free expression which everyone has, now protected by article 10. Therefore, on the basis of the information before me at the moment, I see no basis for complying with parent 3's request in that respect.

Other judgments in Andrew Wakefield v Channel 4 Television Corporation, Twenty Twenty Productions Ltd & Brian Deer

4 November 2005. Mr Justice Eady. Court rejects Wakefield application to have a stay of proceedings imposed on the defendants
21 December 2006. Mr Justice Eady. Court orders Wakefield to turn over documents from the General Medical Council's investigation

2 January 2007. Andrew Wakefield files a notice of discontinuance with the court, and admits liability to pay the defendants' costs